Divorce and superannuation: Who gets what?

Q: I am at the end of a divorce/property settlement. My ex has agreed to give me my share of his super. Does this have to go into a superannuation fund or can he transfer it to me in some other way? And can you please explain how super should be treated when a divorce happens, because it has been very difficult to find any information about this topic.

A: The short answer to your first question regarding accessing super is, that preserved super benefits remain in the superannuation system unless the individual entitled to the benefit has satisfied a condition of release. Common conditions of release: are retiring after the age of 55, or turning 65 or starting a transition-to-retirement pension. Depending on the rules of a superannuation fund, another condition of release may be accessing super due to severe financial hardship.

The answer to your second question, that is, what happens to super benefits when a couple divorce or separate is a more involved discussion.

The Family Law Act 1975 and the Superannuation Industry (Supervision) Act 1993 (SISA) allow an interest in superannuation or a super payment to be divided or split by agreement or court order in the event of a relationship breakdown.

Generally speaking, if a marriage or de facto relationship (heterosexual or same sex) dissolv, the couple involved have 3 options when deciding what happens to superannuation benefits. You can:

Split a superannuation interest (typically a member’s superannuation account) into two benefits via a ‘payment split’ or an ‘interest split’. A payment split means that the super account can be paid (that is, a condition of release is satisfied, such as retirement). More typically, an interest split will be used, which means both parties receive a superannuation interest. The ex-spouse receiving the new benefit can leave the super interest in the same fund (if super fund rules allow this), or transfer the interest into another super fund. If you’re both members of a SMSF the likely option is that one member will transfer his or benefits into another SMSF, or into a large commercial super fund.

Flag the benefit and defer decision until another time. By flagging the super benefit, this allows a couple to protect each of their interest while waiting for a key event to occur, such as impending retirement, or where the valuation of an asset (if members of a SMSF) is finalised. Upon this key event the exact value of the benefit will be known and the trustee of the super fund can then deal with the super account according to a later agreement made by the couple.

Take super into account, but leave untouched. In the past, superannuation was treated as a financial resource rather than an asset of the marriage. Couples can choose to continue taking this approach, and divvy up other assets of the marriage/ relationship to take into consideration the value of the super account rather than splitting a superannuation benefit.

Note: In Western Australia, the superannuation benefit of a person involved in a heterosexual or same-sex de facto relationship cannot be split. Instead the super benefit is treated as a resource of the relationship, that is, the super benefit is taken into account when looking at how all of the assets will be divided between the couple.

Excluding de facto couples in WA, the most common approach is to agree to an ‘interest split’. Typically, the steps involved in splitting superannuation benefits are:

Request information about spouse’s super from super fund

Value the superannuation benefit

Reach an agreement, or if you can’t agree, then apply for a court order

Send a copy of agreement or order to super fund trustee

Split the super benefit (usually worked out using a base amount or percentage amount valuation method)

The rules relating to dividing superannuation assets in the event of a relationship breakdown or divorce are complex and chatting to a family lawyer about the rules and your entitlements is a must. Even where the divorce is amicable, the super laws require each party to get independent advice before signing a superannuation agreement relating to superannuation benefits, if the agreement is to be binding on the trustees of the superannuation fund.

The separating couple can also seek a consent order from the Family Court, if they agree on the settlement, and a court order if they don’t agree on how the super is to be divided.

Note: If you run a SMSF and you’re separating from your spouse, the your situation is more complicated especially if your ex-spouse is also a trustee of the SMSF. Seek advice immediately about how your SMSF can continue into the future, and if you are transferring super benefits to another super fund remember that SMSFs enjoy CGT-exempt treatment on assets transferred to another SMSF upon divorce or separation.

For more information on what happens to your super benefits when you divorce or separate see the following reosurces:

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